Could Title II Be a First
Amendment Knockout?

5/11/2010 5:20 AM Eastern

By: John Eggerton

Washington — First Amendment attorney Robert
Corn-Revere warned the Federal Communications
Commission last week that reclassifying
broadband as a Title II common-carrier service
would be an attempt “to change the level of First
Amendment protection for a medium simply by
changing its regulatory definition,” which he
said the agency
has limited, if any,
authority to do.

He argued that
the recent Citizens
United decision on
corporate political
speech offers clues
to the High Court’s
disinclination toward
Constitutional
gerrymandering.

In a paper being
published by The
Media Institute,
Corn-Revere said
that if the FCC does
reclassify broadband
in the wake of
the BitTorrent decision,
as it signaled
last week it plans to
do, it would be like
“Congress or the
FCC [imposing] indecency
regulations and other public interest obligations
on cable operators simply by reclassifying
them as broadcasters.”

He said that the U.S. Supreme
Court has signaled respect for
the full First Amendment rights
of new media, most recently in
the majority opinion in Citizens
United. While he conceded
that was a close and controversial
decision as a matter of politics
and policy, he said the First
Amendment findings suggest
the court would “limit any attempt
to expand FCC jurisdiction
over new media simply by
manipulating regulatory classifications.”

He pointed to language from
Justice Anthony Kennedy, writing
for the majority in the case,
that “we must decline to draw,
and then redraw, constitutional
lines based on the particular
media or technology used.”

Corn-Revere is a veteran First
Amendment attorney, having
argued, and won, the 1996 United
States v. Playboy Entertainment
Group Inc. case before the
U.S. Supreme Court and who
represented CBS in its appeal
of the fine stemming from Janet
Jackson’s 2004 Super Bowl
halftime “wardrobe malfunction.”

The Institute is a Washingtonbased
First Amendment think
tank backed by a number of media
companies.